State v. Franklin, 95-2101

• Decision Date: 28 March 1997
• Docket Number: No. 95-2101,95-2101
• Citation: 564 N.W.2d 440
• Parties: STATE of Iowa, Appellee, v. Troy Vernon FRANKLIN, Appellant.
• Court: Iowa Court of Appeals

Page 440

564 N.W.2d 440

STATE of Iowa, Appellee, v. Troy Vernon FRANKLIN, Appellant.

No. 95-2101.

Court of Appeals of Iowa.

March 28, 1997.

Linda Del Gallo, State Appellate Defender, and Sharon R. Stevens, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Susan M. Crawford, Assistant Attorney General, Richard R. Phillips, County Attorney, and Kerrie L. Snyder, Assistant County Attorney, for appellee.

Considered en banc.

CADY, Judge.

The issue we confront in this appeal is whether substantial evidence supported a probable cause determination made by a judge for the issuance of a warrant to search a motel room occupied by Troy Franklin. The district court concluded probable cause existed to support the issuance of the search warrant and overruled Franklin's motion to suppress the evidence seized in the search. We agree with the district court and affirm the conviction.

On July 5, 1995, a maid at the Canterbury Inn in Muscatine found a small vial containing a white powdery substance while cleaning room 141, a fanta-suite called the "forest room." Crystal Stockton had checked into the room the preceding day and stayed there overnight with her companion, Troy Franklin. On July 5, Stockton and Franklin moved to room 152, another fanta-suite in the inn called the "jungle room."

The maid turned the vial over to a desk clerk, who contacted the police at approximately 1:00 p.m. The police conducted a field test on the white powdery substance from the vial and found it was methamphetamine. At approximately 3:00 p.m. a police officer presented an application to a district associate judge for a warrant to search room 152.

The application indicated the motel cleaning staff found "a small amount" of a "powdery substance" in room 141 while cleaning the room that morning. It further explained the substance was turned over to police and a test determined it was methamphetamine. Finally, the application stated the occupants of room 141 had "changed to room 152," and were currently staying in room 152. No additional information relevant to the probable cause issue was presented. The judge issued a warrant to search room 152 for drugs and drug paraphernalia.

Police subsequently searched room 152. They found a bag containing 3.19 grams of cocaine powder, a "snort tube," a small scale, a bag of marijuana, a flashlight containing 12.52 grams of methamphetamine, two handguns, ammunition, a "speed loader," cash, and a notebook. Stockton and Franklin were not in the room when police initiated the search, but entered the room sometime after the search began. They were arrested and charged with possession with intent to deliver and failure to have a tax stamp affixed to the drugs. Franklin was carrying a vitamin supplement known to be a common cutting agent for controlled substances at the time of his arrival. Stockton had $2100 in cash in her possession.

Franklin sought to suppress the evidence seized during the search of room 152. The district court overruled the motion. The evidence seized from room 152 was introduced at trial. A jury subsequently found Franklin guilty as charged. Franklin was also found to be in immediate possession or control of a firearm while participating in the crime. He was sentenced to a term of imprisonment.

Franklin appeals. He claims probable cause did not support the issuance of the search warrant. He also asserts there was insufficient evidence he had immediate possession or control over a firearm.

I. Probable Cause

We begin our analysis by recognizing the venerable principle that a search warrant may issue only when based upon probable cause. U.S. Const. amend IV; Iowa Const. art. 1, § 8; Iowa Code § 808.3 (1995); State v. Beckett, 532 N.W.2d 751, 753 (Iowa 1995). The concept of probable cause, however, is not easily defined or explained. Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527, 544 (1983). Rather, by design, it is fluid and flexible to cover each particular factual setting and utilizes the nontechnical, common-sense judgment of reasonable persons. Id. at 232-36, 103 S.Ct. at 2329-31, 76 L.Ed.2d at 544-46. Efforts to exact a degree of certainty from the probable cause standard only end where they begin. In the final analysis, probable cause requires a fair probability of criminal activity. Id.

Appellate courts follow this common sense approach to probable cause in their review of probable cause determinations made by judges or magistrates prior to the issuance of a search warrant. Thus, our review is not de novo, rather we decide whether the judge or magistrate who issued the warrant had a substantial basis for concluding probable cause existed. State v. Green, 540 N.W.2d 649, 655 (Iowa 1995). Moreover, we generally resolve close probable cause questions in favor of upholding the warrant. Id.

It is important to recognize the target of the probable cause determination for the issuance of a search warrant is not the particular suspect of a crime, but the reasonableness of a belief that the item to be seized will be located in the place to be searched. Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 1976-77, 56 L.Ed.2d 525, 535 (1978). The totality of the circumstances must show a reasonably prudent person would believe a crime was committed at the place to be searched or evidence of a crime would be located at the place to be searched. State v. Padavich, 536 N.W.2d 743, 747 (Iowa 1995). Stated another way, a nexus must be reasonably shown between the criminal activity, the things to be searched, and the items to be seized. State v. Thomas, 540 N.W.2d 658, 663 (Iowa 1995). This nexus may be established by considering the nature of the alleged crime and items to be seized, the opportunity to conceal the items, and any inferences concerning the location of the items. Id.

The inferences used to connect the place to be searched with the criminal activity, however, must be those that would normally reveal where the items would be located. See United States v. Pace, 955 F.2d 270, 277 (5th Cir.1992). There must be more than a mere suspicion of criminal activity. State v. Leto, 305 N.W.2d 482, 485 (Iowa 1981).

In this case, the information before the judge relevant to the probable cause determination was a small amount of methamphetamine which had been found by motel cleaning staff in a motel room previously occupied by guests who had moved into a different room in the motel. The State argues it is reasonable to believe the drugs found by the cleaning staff were placed in the motel room by the former occupants and it is further reasonable to believe the occupants would have additional drugs in the room they occupied.

A single instance of possession of illegal drugs at a particular location will ordinarily support a finding of probable cause to search that location if the warrant is sought and issued within a relatively short period of time after possession occurred. State v. Paterno, 309 N.W.2d 420, 424 (Iowa 1981); Wayne R. LaFave, Search and Seizure § 3.7, at 684 (3d ed.1978); see State v. Gillespie, 503 N.W.2d 612, 616 (Iowa App.1993). The rationale for this rule is drugs are easily movable, and probable cause must exist at the time the warrant issued. See Commonwealth v. Watson, 36 Mass.App.Ct. 252, 629 N.E.2d 1341, 1344 (Mass.App.1994).

The State argues this same principle applies to establish probable cause in this case. It asserts probable cause would extend to most any location occupied by Franklin within the motel within a reasonable period of time after discovery of the drugs. ¹

We emphasize the Fourth Amendment protects people, not places. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967). This means it protects a person's legitimate expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, 401 (1978). We have previously expressed doubts whether a person has a legitimate expectation of privacy in a hotel room. See State v. Smith, 476 N.W.2d 86 (Iowa App.1991). Notwithstanding, we think the expected level of privacy in a motel or hotel room can be as great as in a home or office. United States v. Jackson, 588 F.2d 1046, 1052 (5th Cir.1979). Thus, the Fourth Amendment normally provides the same protection to each of these locations. Id. In this case, Franklin had a privacy interest in room 152. The Fourth Amendment protected this privacy interest, separate and distinct from the privacy interest he previously enjoyed in room 141.

The inference drawn by the State to support probable cause is based on very limited evidence. There was no information provided about the background of the occupants of the motel room. See Padavich, 536 N.W.2d at 750 (evidence of defendants' past drug activity suggests marijuana use on particular occasion was not an isolated incident); Connecticut v. Nazario, 38 Conn.App. 588, 662 A.2d 1313, 1318 (1995) (known drug dealers likely to have drugs where they live); see also Commonwealth v. Laughlin, 40 Mass.App.Ct. 926, 663 N.E.2d 1245 (1996) (evidence defendant is a drug dealer not probable cause to search house). Nor was there evidence of a pattern of drug use. Moreover, there was no actual evidence of drug use other than the discovery of a small quantity of drugs. See State v. Keller, 870 S.W.2d 255, 258 (Mo.App.1994) (syringes, cocaine powder, and a razor were found in bathroom area of hotel room by cleaning staff, together with evidence guest paid cash for room, refused maid service, had food delivered to room, made a large number of telephone calls, received a number of short-term visitors, and placed an envelope in a hotel safety deposit box sufficient to support finding of probable cause for issuance of a search warrant); United States v. Williams, 974 F.2d 480, 481-82 (4th Cir.1992) (totality of circumstances establishes fair probability drug paraphernalia will be found...